Dattatray Mahadaji Phadnis Vs. Rama Datt Sharma - Court Judgment

LegalCrystal Citation

legalcrystal.com/475225

Subject

Civil

Court

Allahabad

Decided On

Aug-13-1934

Reported in

AIR1935All49

Appellant

Dattatray Mahadaji Phadnis

Respondent

Rama Datt Sharma

Excerpt:.....the powers vested in him under section 151, civil p. , and that in this he was wrong because the application for review had been rejected, not in consequence of the failure of the applicant to appear, (he did in fact appear through his pairokar or agent), but in consequence of his failure to make up the deficiency in court-fees. after taking into consideration the entire circumstances, i am satisfied that there are no extenuating circumstances in favour of the applicant on facts as well to justify the exercise of the power conferred under section 151, civil p. if these were the only circumstances to be considered, namely, that the munsif had believed the case to be a good one for review, and that the condition imposed by him had only been nominally violated -the money having been..........file an application for review of a previous, order, dated 1st november 1933, rejecting the applicant's plaint. a preliminary objection was raised that the provisions of section 115, civil p.c., would not apply in a case like this, where the munsif had merely refused to exercise the powers vested in him under section 151, civil p.c. it was however submitted on behalf of the applicant that the order of the munsif showed that he was dealing with the matter not under section 151, but under order 47, rule 7, clause (2), civil p.c., and that in this he was wrong because the application for review had been rejected, not in consequence of the failure of the applicant to appear, (he did in fact appear through his pairokar or agent), but in consequence of his failure to make up the.....

Judgment:ORDER

Kendall, J.

1. The present application is stated to be one for the revision, of an order of the Munsif of Banda, dated 21st December 1933, rejecting an application for an order restoring to the Munsif's file an application for review of a previous, order, dated 1st November 1933, rejecting the applicant's plaint. A preliminary objection was raised that the provisions of Section 115, Civil P.C., would not apply in a case like this, where the Munsif had merely refused to exercise the powers vested in him under Section 151, Civil P.C. It was however submitted on behalf of the applicant that the order of the Munsif showed that he was dealing with the matter not under Section 151, but under Order 47, Rule 7, Clause (2), Civil P.C., and that in this he was wrong because the application for review had been rejected, not in consequence of the failure of the applicant to appear, (he did in fact appear through his pairokar or agent), but in consequence of his failure to make up the deficiency in court-fees. There has been some argument on this point, but I do not propose to discuss it at length, because it is quite clear from the Munsif's order that he did believe that he was dealing with the matter under Section 151. He remarks at the end of his order:

After taking into consideration the entire circumstances, I am satisfied that there are no extenuating circumstances in favour of the applicant on facts as well to justify the exercise of the power conferred under Section 151, Civil P.C.

2. The matter might therefore be disposed of summarily on the ground that Section 115, cannot be applied to the case because the Munsif has considered the matter judicially and has refused to exercise his discretion under Section 151, so that no question of jurisdiction arises at all. There are however circumstances in which this. Court would itself be justified in exercising its discretion under Section 151 and setting aside the order' of the Munsif. If the circumstances immediately attending the Munsif's order rejecting the application for review are considered by themselves and without reference to what went before they might justify this Court in setting aside the order. The plaint had originally been rejected on 1st November 1932 on the ground that the court-fee paid was insufficient : but subsequently on 22nd July 1933 the Munsif conditionally allowed an application for review of this order on the condition that the balance due for court-fees was paid in full within 25 days, that is to say by 16th August 1933. On that date, according to the affidavit filed by the applicant, he appeared and stated that the money had not yet been received from Bombay, but might arrive at any moment, and it did actually arrive by telegraphic money order the same evening after the Court was closed.

3. But when the applicant appeared in Court on 17th August the Munsif said that he had already dismissed the application for review at 10 a.m. If these were the only circumstances to be considered, namely, that the Munsif had believed the case to be a good one for review, and that the condition imposed by him had only been nominally violated - the money having been available on the last date allowed and having been proffered in Court on the following day as soon as the Court opened - it might be held that the Munsif had acted with too much rigour in rejecting the application for review and had in consequence not acted judicially in refusing to set that order aside at a subsequent stage under Section 151. There are however other circumstances in the case that I am bound to take into consideration.

4. The suit concerned is one of a number instituted by the liquidator of a certain company whose headquarters were at Bombay. The company was one that had carried on business by granting loans on receipt of certain fees. It had re received fees from some persons and was consequently indebted to them, and it had issued loans to other persons which had not been repaid, and consequently had claims against them. The company went into voluntary liquidation in 1930, and the liquidator was appointed for the purpose of realising the money from the debtors and paying it to the creditors of the firm. He had instituted suits all over the country, and I am informed that 126 suits involving about Rs. 29,000 were instituted in Banda district alone. The liquidator however had no money to start with, and when the suits were filed in the Court of the Munsif of Banda on the list day of limitation, namely, 1st August 1932 through the liquidator agent it was impossible, for him to provide the money necessary for the court-fees, so that the plaints were filed on insufficient court-fee stamps. I do not know what the circumstances of the other suits were, but in the present suit the order sheet shows that on two dates after the filing of the plaint, namely, on 3rd September 1932. and 15th October 1932 further time was allowed by the Court, and it was not until 1st November 1932 that the plaint was finally rejected under Rule 11. Order 7.

5. It may be noted that the Court had no option but to reject the plaint under the provisions of this rule, and that the order rejecting the plaint was a 'decree' within the definition of Section 2 Civil P.C. On 3rd January 1933 however the applicant applied for restoration, of the suit, and the Munsif, rightly appreciating, that the only remedy of the applicant was either an appeal against the decree or an application for review, treated it as an application for review, and allowed time for the payment of the necessary fees. These fees were paid and, as I have already remarked, on 22nd June 1933 the order passed was that the application for review was conditionally grant-ed provided that the court-fees were paid in full within 25 days. What happened after that I have already described. I am not in a position to say, why the Munsif believed that there were good grounds for granting a review if this condition were fulfilled. An affidavit had been filed in his Court showing the difficulties under which the liquidator was labouring. But these difficulties however real in themselves, had nothing to do with the ground set forth in Order 47 as good ground for a review, and I am therefore of opinion that this order of 22nd July 1933 was in itself not a proper order.

6. If it had been a proper order and if the application for review had subsequently been rejected because the money had been proffered by the applicant only a few hours after the expiration of the period allowed to him, then, in my opinion, the Court would have been acting with judicial discretion in accepting the money and allowing the review. As however there were no proper grounds for allowing a review at all, I shall not be justified in using the powers vested in this Court by Section 151, of the Code in interfering with the order passed. The application is therefore dismissed with costs.